Home Table of Contents

WPI 105.05 Burden of Proof—Informed Consent—Health Care Provider

6 WAPRAC WPI 105.05Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 105.05 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part IX. Particularized Standards of Conduct
Chapter 105. Health Care
WPI 105.05 Burden of Proof—Informed Consent—Health Care Provider
[In connection with the plaintiff's claim of injury as a result of the failure to obtain the patient's informed consent to the treatment undertaken, the] [The] plaintiff has the burden of proving each of the following propositions:
First, that the defendant failed to inform the patient of a material fact or facts relating to the treatment;
Second, that the patient consented to the treatment without being aware of or fully informed of such material fact or facts;
Third, that a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material fact or facts; and
Fourth, that the treatment in question was a proximate cause of injury to the patient.
If you find from your consideration of all of the evidence that each of these propositions has been proved, your verdict should be for the plaintiff [on this claim]. On the other hand, if any of these propositions has not been proved, your verdict should be for the defendant [on this claim].
Use this instruction with WPI 105.04 (Informed Consent—Health Care Provider). Use the bracketed material if there are additional claims to which this instruction does not apply, such as negligent malpractice. If informed consent is the only issue in the case, do not use the bracketed material.
Use WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence) with this instruction.
Use this instruction when there is only one defendant and there is no issue of contributory negligence or any other affirmative defense. If there are multiple defendants, cross-claims, or a third-party complaint, the instruction and verdict forms will have to be modified accordingly.
Use Verdict Forms A and B, WPI 45.20 (General Verdict Forms—Personal Injury/Wrongful Death—Single Defendant—No Contributory Negligence—No “Empty Chairs”—Separate Damage Elements), with this instruction.
RCW 7.70.050.
The plaintiff has the burden of establishing by expert testimony the nature, character, and anticipated results of the treatment proposed and administered, the recognized possible alternative forms of treatment, and the recognized serious possible risks, complications, and anticipated benefits involved in the treatment administered, in recognized possible alternative forms of treatment, and in no treatment. RCW 7.70.050.
Plaintiff need not establish what other health care professionals would disclose, as there is a legal duty to disclose. Archer v. Galbraith, 18 Wn.App. 369, 567 P.2d 1155 (1977); Miller v. Kennedy, 11 Wn.App. 272, 522 P.2d 852 (1974), affirmed at 85 Wn.2d 151, 530 P.2d 334 (1975) (per curiam).
The court in Smith v. Shannon, 100 Wn.2d 26, 666 P.2d 351 (1983), discussed in detail the extent to which expert testimony is necessary in an informed consent action. Smith adopts a two-step process for determining if the facts that were not disclosed were material. First, the scientific nature of the risk must be ascertained. This inquiry focuses on the nature of the harm that may result and the probability of its occurrence. This aspect of materiality must be established by expert testimony. Second, the trier of fact must then decide whether the probability of that type of harm is a risk that a reasonable patient would consider in deciding on treatment. This step of the determination does not require expert testimony. See also Adams v. Richland Clinic, Inc., P.S., 37 Wn.App. 650, 681 P.2d 1305 (1984).
If a consent form has been signed, it is prima facie evidence that informed consent was given. If a signed form is introduced, the patient has the burden of rebutting that evidence by a preponderance of the evidence. RCW 7.70.060.
[Current as of September 2018.]
End of Document